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Sixth Circuit's 'Dirty' Decision Sends a Chill

Let's start with the following premise: thedirty.com is a tasteless
website. In addition to a bit of celebrity gossip and paparazzi-type
pictures, the site also invites anyone to post pictures – often
revealing, embarrassing, or insulting – of others for comment by users
and, sometimes, the site's proprietor.

The site has been sued a number of times for postings making scurrilous allegations. One of these lawsuits was brought by Sarah Jones, a former Cincinnati Bengals cheerleader and high school teacher, who sued over postings (now removed)
on thedirty.com which accused her of having a sexual disease and
claimed that she "has slept with every ... Cincinnati Bengal football
player." (Jones now has bigger problems: she was arrested in March on charges of sleeping with one of her students. She has pleaded not guilty.)

Jones
originally filed the suit anonymously. She mistakenly named thedirt.com – rather than thedirty.com – as the defendant, leading to a default
$11 million verdict.

After that was cleared up, the site responded to the lawsuit by invoking section 230 of the Communications Decency Act,
47 U.S.C. § 230, which provides that operators of "interactive computer
services," including web sites, cannot be held liable for material
contributed (posted) by someone other than the site operator. As
thedirty.com explains in its FAQ:

What this law says is that if you are the operator of an “interactive
website” (meaning a site that allows users to post comments), you cannot
be held liable for anything that is posted on the site by users,
including stories written by users and emailed to the site. If Nik
[Nik Richie, the man behind the thedirty.com site] writes something himself and posts it, he is responsible for the
accuracy of his words. However, as to everything else posted by users,
Nik is not liable for what they say.

Although the defendants have invoked their alleged right not to stand trial under the CDA, they
have failed to demonstrate how a substantial public interest will be
imperiled by delaying their appeal until after the district court enters
a final order.

But the Sixth Circuit's ruling is contrary to other courts' decisions stating that, in a First Amendment context,
the mere threat of prolonged litigation can have a "chilling effect."
The Supreme Court recognized this in its holding in Anderson v. Liberty Lobby,
where it held that the "clear and convincing" "actual malice" standard
should inform summary judgment rulings in public figure and public
concern defamation cases.

Our inquiry is whether the Court of Appeals erred in holding that the
heightened evidentiary requirements that apply to proof of actual malice
in this New York Times case need not be considered for the purposes of a
motion for summary judgment. ...

In sum, we conclude that the determination of whether a given factual
dispute requires submission to a jury must be guided by the substantive
evidentiary standards that apply to the case. This is true at both the
directed verdict and summary judgment stages. Consequently, where the
New York Times [v. Sullivan] "clear and convincing" evidence requirement applies, the
trial judge's summary judgment inquiry as to whether a genuine issue
exists will be whether the evidence presented is such that a jury
applying that evidentiary standard could reasonably find for either the
plaintiff or the defendant.

In his dissent in Anderson, Justice Brennan stated that "[t]he Court's holding today is not, of course, confined in its application to First Amendment cases." Id. at 268. But its practical effect in media litigation has been extensive.

Since Anderson, it is virtually a "given" that a libel defendant will move for summary judgment, whether on actual malice, substantial truth, opinion, qualified privilege or other grounds. A quick review of published district court opinions post-Anderson shows that summary judgment proceedings are the norm.

And
MLRC's studies on summary judgment in media litigation (including one I
conducted in 2007) have shown that media defendants win summary
judgment motions in more than three-quarters (about 78 percent) of the
cases in which they are made, and win partial summary judgment in an
additional six percent of cases.

In the Internet
context, section 230 was enacted to prevent a "chilling effect" that the
threat of litigation would have on discussion on the Internet. (Of
course, there was also the practical question of how websites could
monitor the flood of comments.)

In Sarah Jones' case
against thedirty.com, there may indeed be disputed evidence of the
website's involvement in soliciting tortious statements from users; and
perhaps enough evidence for section 230 to not apply.

But
courts should tread a cautious line here, and not turn section 230 into
a paper tiger that does not impose any real impediment to plaintiffs'
lawsuits against web sites.

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Contributors to this blog include a diverse group of lawyers, law professors, law students, and others with an interest in new media. The views expressed are solely those of the individual contributors and do not necessarily reflect the position of the DMLP or the institutions with which they are affiliated. To learn more about the DMLP, please click here.

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